the trial, for the State to show the attack upon A. as immediately connected with
the killing of B., and constituting part of the transaction. Ib.
11. The plaintiff offering, and being permitted, to read in evidence a certified copy
of an entry made in the books of one of the land offices in this State, and it not
appearing that any suspicion was thrown upon its authority, or that there
was any such specification of want of authentication as to bring that question
here for revision, this court will presume that the court below used every pro-
per precaution to prevent being imposed upon by a forged instrument, and
that there was no error in permitting it to be read in evidence. Hogins vs.
Brashears, 242.
12. Where the verdict rests upon the mere weight of evidence, of which it is the
peculiar province of the jury to judge, this court will not, except in extreme
cases, reverse the decision of the court below, refusing a new trial. Funkhouser
and Wife vs. Pogue, 295.
13. Where the security in a bond for costs is introduced as a witness against the
party on whose motion the bond was required to be filed, the objection to his
competency must be made at the trial, and if he is permitted to testify without
objection, the party is presumed to have waived the incompetency, and cannot
make it ground for new trial, or reversal on error. Scott vs. Jester, 437.
14. A mere expectation of the payment of a debt out of the proceeds of the judg
ment, however strong, if not amounting to a legal right, has been deemed insuf-
fieient to render the witness incompetent. Ib.
15. When a witness produced by the plaintiff is so connected with the transaction
about which he is called to testify, that a verdict for the plaintiff would entirely
relieve him from all liability, he will be incompetent, as being directly interes-
ted in the event of the suit: otherwise, he is competent. Ib.
16. In an action by the principal against a third party, the agent of the plaintiff is
a competent witness to prove all acts done by him within the scope of his au-
thority, but where he has acted without authority, and laid himself liable to the
plaintiff, he is not a competent witness where the verdict for the plaintiff would
release him from all liability. Ib.
17. Where it appears, after a witness has testified, that he is incompetent, the court
will strike out his evidence, or exclude it from the jury on motion; but if the ob-
jection be not made at the trial, it will not avail on error. Ib.
18. The charter of the plaintiffs provides that policies of insurance, issued by the
company, shall be under the seal of the corporation. In a suit by them for the
premium of a policy ordered by the defendant, and alleged to have been execu
ted by them, they cannot introduce in evidence an unsealed policy. Lindauer &
Co. vs. Delaware Mutual Safety Insurance Company, 461.
19. A witness, after stating the facts, expressed his opinion that, insurance is ef-
fected and completed by the acceptance of the order for insurance, and the com.
pany thereby bound for loss on the one hand, and the party ordering the insu.
rance, for the premium, on the other: HELD, That such expression of opinion
was incompetent evidence, as it undertook to decide the very matter in contro-
versy. Ib.
20. In this case, the plaintiff sued for the premium of a policy of insurance. The
proof was, that the defendant ordered the insurance, and the company made out
the policy in due form, but the defendant did not call for it, and it was not deli-
vered. The court is inclined to the opinion that the plaintiffs can not maintain
the action, unless upon remanding the cause, they shall prove by witnesses skilled
in the law, and competent to testify, that by law or usage in Pennsylvania, upon
the facts proven, it follows that the contract was completed, and the company
bound in case of loss. Ib.
21. Where the purchaser of a slave files a bill to injoin a judgment against him for
the purchase money, alleging that he took a bill of sale from the vendor, warran-
ting the slave to be sound in all respects except in her feet, and that she proved
to be otherwise unsound, he must rely upon such bill of sale as the evidence of
the terms of the contract between him and the vendor, and cannot succeed upon
the proof of verbal representations made to him before the sale by the vendor in
regard to the souudness of the slave. Hooper et al. vs. Chism, 496.
22. Where such bill of sale is alleged to be lost, and its contents are denied by the
answer of defendant, they should be substantially proven, where no copy is pro.
duced, by a witness who has seen or read the instrument, or is otherwise enabled
to speak with some degree of accuracy as to its contents, and identify it as the
one executed by the party to be charged. Ib.
23. Where parties reduce a contract to writing, with a full knowledge of its con-
tents, parol evidence is inadmissible to show an understanding or intent of the
parties different from that expression in the instrument. Jordan, ad. vs. Fenno,
24. It is true that an absolute deed may, by parol evidence, be turned into a mort-
gage, but this is on the assumption of fraud in the grantee. Ib.
25. Simpson made an affidavit before a justice that Collier had assaulted and woun-
ded him; and on the same day gave his deposition upon the same charge, before ma-
gistrates, acting as a court of inquiry, in the absence of the accused. Afterwards,
Simpson died, and Collier was indicted for murdering him: HELD, That the af-
fidavit and deposition of Simpson aforesaid, not being dying declarations, having
been taken ex parte, and upon an accusation for a less offence, could not be read
in evidence by the State, on the trial for murder. Collier vs. State, 677.
FORCIBLE ENTRY AND DETAINER.
1. The action of unlawful detainer, under our statute, rests upon contract, express
or implied, between the parties-in other words, upon the relation of landlord
and tenant. Miller vs. Turney, 385.
2. If the tenant rent an entire tract of land from the landlord, he cannot dispute
FORCIBLE ENTRY AND DETAINER.-CONTINUED.
his title to any part of it, on the termination of the lease, but must surrender
the whole, regardless of the title of the landlord. Ib.
3. On the other hand, if the tenant rent only so much of a tract of land as is en-
closed, he cannot be dispossessed of the balance of the tract, in this form of
action, no matter what title or length of possession the landlord may have had;
but ejectment is the proper remedy for the part not rented. Ib.
4. The defendant may be found guilty as to part, and not guilty of the balance of
the charge laid in the plaintiff's complaint. Ib.
5. The court disapprobates the practice of multiplying counts and pleas in ac-
tions of forcible entry and detainer, &c., and remarks that, in the proceed.
ing either for forcible entry and detainer or unlawful detainer, it would rarely
occur that more than one count would be required to set forth the complaint;
and in either form of the action, the only pleas in bar necessary for defend-
ant, to put the plaintiff upon proof, or let in any defence, are not guilty, and
that the defendant, or he and those under whom he claims, as the case may
be, had been in the peaceable and uninterrupted possession of the premises
for three years next preceding the filing of the complaint. McGuire v. Cook,
448.
6. The legal effect of this latter plea is to put the burthen of proving it on the de-
fendant, owing to the peculiar wording of the statute, though intended as a
limitation; and as held in Burke vs. Hale, (4 Eng. 328,) the plea is disproved if
it appear that the plaintiff, or any one holding under him, has been in posses-
sion at any time within the three years-the possession of the tenant being that
of the landlord. Ib.
7. It is not necessary for the defendant to show that he, in person, has been in
possession of the premises for three years next before the commencement of the
suit, the intent and meaning of the 18th sec. of chap. 71, Digest, being that plain-
tiff can not maintain the action unless he, or some one holding under him, has
been in possessinn of the premises within three years next before the complaint
made.
8. The object of chap. 71, Digest, is to restore possession forcibly taken, or unlaw.
fully detained, without regard to the ownership or title to the property, and the
plaintiff must, in all cases, allege in his declaration, that he was in possession
of the premises. Ib.
9. Upon the facts in the case of Fowler vs. Knight, (5 Eng. 43,) which was for for-
cible entry and detainer, the decision was doubtless correct-but, so far as it
may be inferred from the opinion in that case that this action may be maintained
upon a constructive possession, i. e. that the title draws to it the possession as
of personalty, or that where the entry is peaceable, if made without color of title,
the law will imply force, or that the plaintiff may recover by showing his right
to the possession, without showing that he had the possession and lost it by
means of the defendant's entry, or that by making the affidavit, and giving the
FORCIBLE ENTRY AND DETAINER-CONTINUED.
bond required, this summary proceeding may become a substitute for the action
of ejectment, the court now declares that such is not the law. Ib.
10. It is not sufficient for the plaintiff to allege in his declaration that he was law-
fully entitled to the possession. Ib.
11. Nor will it suffice to allege that he was seized. In this country, where lands
pass by deed, and not by livery, the term seizin does not necessarily imply pos-
session, but there may be a constructive seizin, which is only the right to the
possession. Ib.
12. Nor will a constructive disseizin come within the policy of the law. On the
other hand, the plaintiff need not be seized at all; an estate for years, a tenancy
at will, or by sufferance, is sufficient. A bare possession, without right, will
be protected and restored, if invaded by force, or held over by a tenant in fraud
of his contract. Ib.
13. In forcible entry and detainer, force is the gist of the action; unlawful detainer
is fonnded on a breach of contract; and the court is inclined to the opinion that
forcibly entry and unlawful detainer cannot be joined, and that it is good cause
of demurrer, where it appears on the face of the declaration, that the premises
sought to be recovered, are one and the same thing. Ib.
1. Where a party executes a bond and mortgage to another to cover up his pro-
perty and defraud creditors, though the contract is binding upon the parties,
and their representatives, yet creditors may file a bill to cancel it, and establish
its true character by parol. Jordan ad. vs Fenno, 593.
1. A party relying for title to a slave upon the Virginia statute of frauds of 1785,
must affirmatively prove peaceable and interrupted possession of the slave five
years, in himself, or the person under whom he claims. Whitfield vs. Brow-
der et al., 143.
2. Where a father loaned to his daughter a slave, but asserted his title to her every
christmas by having her brought to his house, and then permitting her to re-
turn again, no title vested in the husband of the daughter under the above sta-
tute, his possession not being continuous and uninterrupted. Ib.
3. It is a well established rule that in construing evidence, it shall be so construed
as to reconcile apparent inconsistencies, if the language used will admit of it, so
as to give credit and effect to the whole statement of the witnesses. Ib.
1. The act of January 20th, 1853, (Digest, ch. 75,) prohibiting the emigration of
free negroes into this State, did not repeal, by implication, chap. 63, Digest, au-
thorizing the emancipation of slaves by deed or will. Campbell et al. vs. Camp
bell et al., 513.
FRED. W. TRAPNALL.
Tribute of respect to memory of, 766.
1. An indictment for betting money on a game of cards, is not sustained by proof
of the betting of property. Horton vs. State, 62.
2. The owner or occupant of a house, &c., cannot be indicted, under the 4th sec. of
the gaming act, for permitting pocre, or any of the small games of cards men-
tioned in the 8th section of the act, to be played in his house, &c., but only for
suffering some of the games, tables, banks, &c., embraced in the previous sec-
tions, to be played, carried on or exhibited, &c., therein. Stith vs. State, 680.
3. So much of the opinion of this court, in Mathis vs. The State, (3 Ark. 84,) as is
in conflict with the decision herein, is overruled. Ib.
4. Where an indictment charges several persons with a joint betting at a faro bank,
the proof must correspond with the allegation, and show that all the persons
named were concerned in the betting. Johnson vs. State, 684.
5. Where a number of defendants are joined in a count for betting at faro, or any such
game, it is proper to charge that they severally bet, to make the indictment avail-
able-though the court would not encourage the joinder of persons severally com-
mitting the same species of offence, as it produces inconvenience. Ib.
6. Independent of any statute, the keeping a common gaming house, is an indict-
able offence at common law, such an establishment being a nuisance. Vander-
worker vs. State, 700.
7. It has been held that a general charge that the defendant kept and maintained a
common gaming house would be sufficient, though the better opinion is, that a
further allegation, in general terms, of what was transacted there, is necessary;
but it is not essential to specify what particular games were carried on by the
visitors. Ib.
8. Concluding such an indictment "contrary to the form of the statute in such case
made and provided," will not vitiate, when it is coupled with an allegation that
the offence charged was a “common nuisance," and a further conclusion "against
the peace and dignity of the State." The words "contrary to the statute," &c.,
will be regarded as surplusage, and not as indicating a prosecution under the
statute against gaming houses. Ib.
9. The defendant was indicted for betting at a game of cards called pocre, and con-
victed on testimony that he did bet money at pocre, though the game on which
he bet was called draw pocre, and differed in some respects from pocre. The
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